01990642
04-10-2002
Larry D. Lewis, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Larry D. Lewis v. Department of the Army
01990642
04-10-02
.
Larry D. Lewis,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01990642
Agency No. AWGIFO9506F0020
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant
claimed that he was discriminated against on the bases of sex (male),
age (DOB: 9/25/49) and reprisal (prior EEO activity) under Title VII when:
(1) he was not referred for selection consideration for a park ranger
position under vacancy announcement OCVA 92-1<1>;
he was treated differently than other similarly situated female
co-workers under forty years of age in his working conditions concerning:
furloughs, probationary periods, time-in-grade requirements and
experience; and
the EEO manager failed to assign an EEO Counselor to address the instant
complaint in a timely manner.
The record reveals that during the relevant time, complainant was a former
Park Ranger, GS-05 at the agency's Riverlands Management Area Office,
Natural Resource Management Branch, Operations Division, St. Louis,
Missouri facility.<2> The record reveals that complainant was appointed
on May 19, 1991, to a seasonal, career conditional Park Ranger position
which was subject to a one year probationary period. On October 21, 1991,
complainant signed a Seasonal Employment certificate which acknowledged
his understanding that his appointment was seasonal and that he would
work recurring periods lasting fewer than twelve months each year and
it was anticipated that he would work eight to nine months each year.
Complainant was furloughed from December 1, 1991 through March 23, 1992.
On July 27, 1992, complaint was discharged effective July 31, 1992,
during his probationary period for unacceptable performance and failure
to follow instructions.
Complainant applied for the position in question in June 1992, prior to
his termination. Complainant learned in August 1992, that two women had
been selected for the position. Complainant maintains that he should
have been on the referral list because he was better qualified than the
selectees since he had a Bachelor of Science degree in Criminal Justice
and Criminology with a minor in Management. He also had a 3.0 grade
point average which he believed qualified him for the GS-07 position.
Complainant also contends that he met the time-in-grade requirement,
while one of the selectees did not. He indicates that one of the
selectees was furloughed but that she was credited with furlough time
which allowed her to meet the requirements for promotion.
With respect to (2) complainant contends that his supervisor failed
to provide him with any orientation, resented him asking questions
concerning the job, assigned him tasks on short notice with no direction,
scheduled work which conflicted with his military obligations and
medical appointments, and required him to work without remuneration.
He also maintains that female park rangers were not required to work at
night in Visitor Assistance.
With respect to (3) complainant maintains that he contacted the EEO
Manager in September 1992, but she failed to secure an EEO Counselor to
handle his complaint. He maintains he was not advised of his rights,
his name was illegally disclosed and the Merit Systems Protection Board
was improperly contacted.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on August 11, 1993.
At the conclusion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing before an AJ but withdrew his request for
a hearing on December 13, 1997. As such, the agency issued a FAD.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of discrimination based on sex, age and reprisal.
Nevertheless, the FAD indicated that the agency articulated legitimate,
nondiscriminatory reasons for its actions, with respect to (1), the
FAD found that even though the referral list could not be located,
assuming arguendo that complainant had established a prima facie case
of discrimination, the record revealed that the two selectees were more
qualified than complainant with regard to education related to the field,
time-in-grade and experience. With respect to (2), the FAD found that
both male and female employees were treated the same with regard to
furloughs, probationary period, time in grade, experience and working
at night in the Visitor Assistance Program. The FAD also found that
complainant did not like taking instructions from his supervisor and
would not takes notes so she had to repeatedly deal with the same issues.
Further, when it was realized that complainant had been scheduled to
work for the weekend he had military duty complainant was granted leave
and given a written apology. Complainant was never required to work
without pay. With respect to (3), the FAD found that an EEO Counselor
attempted to contact complainant but that complainant did not return
the telephone calls. The FAD found that with respect to the basis
of reprisal, there was no evidence of prior complaint activity by the
complainant, nor was there any evidence that management officials were
aware of any EEO activity on his part prior to making their decisions
regarding his working conditions, nonreferral and termination.
On appeal, complainant contends that the FAD did not include EEOC Form
573, Notice of Appeal/Petition. The agency requests that we affirm
its FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Hazen Paper Company v. Biggins, 507 U.S. 604, 610
(1993) (age had "a role in the process and a determinative influence on
the outcome"); and Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st
Cir. 1976) (applying McDonnell Douglas to reprisal cases), the Commission
agrees with the agency that complainant failed to establish a prima facie
case of discrimination based on sex, age and reprisal. In reaching
this conclusion, we note that complainant failed to demonstrate that
similarly situated employees were treated more favorably. We note
that the record shows that both men and women over and under the age
of 40 were furloughed and that furlough or time in a non-pay status
was counted for all employees as time-in-grade and experience credit,
including complainant. Moreover, we find the agency provided legitimate,
nondiscriminatory reasons for its actions. The agency noted the employees
referred for selection and ultimately selected for the position were
more qualified than complainant. We also note that women as well as men
worked nights. We find that the record is void of any evidence which
even slightly suggests that complainant's sex or age were considered
regarding his nonreferral and working conditions.
With respect to the agency not assigning an EEO Counselor to address
complainant's concerns in a timely manner, the Commission does not find
that the agency was in error. We note that the record reveals that
complainant appears to have been part of the problem since he did not
return telephone calls from the EEO Counselor regarding this matter.
Additionally, we note that if a complainant is dissatisfied with the
processing of his EEO complaint, he must bring his allegations regarding
the processing of this complaint to the EEO Director. See EEO Management
Directive 110, (MD-110) p.5-25 (November 9, 1999).
Further, with regard to complainant's allegation of reprisal, we find he
did not present evidence that management was aware of his participation
in the EEO process, therefore he failed to establish a nexus between
the agency's actions and his participation in the EEO process. Lastly,
the Commission finds that complainant failed to present evidence that
more likely than not, the agency's articulated reasons for its actions
were a pretext for discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____04-10-02______________
Date
1We note that according to the agency the referral list is not part of
the file because it could not be located.
2 Complainant contends the announcement was amended at some point to
include reinstatement eligibles.